Editorial: Efforts must be made to avoid more FOIA violations

Sunday

Sep 3, 2017 at 12:01 AM

City officials recently found themselves in hot water over a series of emails some Fort Smith directors used to discuss a situation behind closed doors. The city got off easy when a prosecutor last week declined to press charges while saying the directors did, indeed, violate the Freedom of Information Act by engaging in an email exchange. City directors deserved to be called out for their actions, because the emails represent a disregard for the FOIA as well as a signal to the public that it’s OK to conduct the public’s business behind closed doors. Calling the law “ridiculous” does not clear the way for the law to be violated. Saying you don’t understand the law is equally inexcusable.

City attorney Jerry Canfield issued a letter to prosecutor Dan Shue stating that the city disagrees with Shue’s opinion that the emails constituted “meetings” in violation of FOIA. It’s fine to disagree with a law, but it’s not OK to break it, even when you believe you aren’t. Calling the law “ridiculous,” as City Administrator Carl Geffken did during a criminal investigation concerning the possible FOIA violations, is troubling. Public officials should not be OK with public business being conducted in private. City directors were elected so that they can represent the people of Fort Smith. By having behind-the-scenes conversations out of the public’s view, that representation isn’t being met. How can citizens of Fort Smith trust their representative if there is a mindset that doing things behind closed doors is OK? Even if the emails didn’t violate the FOIA, as the city attorney says, they still go against all that the FOIA stands for.

Fort Smith officials can’t continue to plead ignorance to FOIA laws when there are so many examples of governing bodies being called out for discussing business out of the public’s eye by using email and other means to communicate. Take a look at the situation the Fort Smith School Board found itself in during the past year. A judge ruled in June that although no intention was found to deceive the public, the board violated the Freedom of Information Act in October when members proposed a new slate of officers by email to vote on at their next meeting. In his ruling, Sebastian County Circuit Judge Stephen Tabor explained why an email exchange between members of the school board was indeed a “meeting” and no prior notice was given to the public as stipulated by Arkansas law.

The issue with the school board happened in the city directors’ own backyard, and yet, directors proceeded with their email exchange with apparently no thought or concern about the potential to find themselves in the same legal trouble. The May email exchange referenced potential actions the board could take regarding the Civil Service Commission when the commission did not approve a change in hiring policies. Police Chief Nathaniel Clark’s request to accept applications from external applicants for positions above patrol officers was denied. This decision kept in place a policy that requires a promotion of internal applicants.

But the merit of the discussion is irrelevant, as it was in the school board’s case. Public business is public business, whether it’s an easy issue or something more complex. Telling a Fort Smith resident that the emails can be seen by anyone who wants to see them via a FOIA request is unfair. Anyone who wants to understand the deliberation among elected officials should be able to hear discussions at a city meeting, announced ahead of time, as per FOIA laws.

City directors have been warned that any violation going forward would mean another investigation. Shue stated in his letter to the Board of Directors that “if there is another occurrence of ‘conducting public business in this fashion’ the Sheriff’s Office and my office will be compelled by the law to take further action” and that he agrees with the Sheriff’s Office report that “FOIA training still appears to be relevant to the issue at hand.”

“ … no violation like the ones that have occurred should be allowed to occur in the future. The public deserves to be privy to all of the Board’s hard work, not just some of it,” Shue goes on to say.

We advocate for regular training on FOIA laws — at least once per year and following any election where new members join a local governing body. Public officials, including the city administrator, must be proactive on this. It must be done without fail. Fort Smith School Board members underwent the training in March, and the Fort Smith Board of Directors has made plans to conduct its own training later this month.

The training is long overdue. City directors have said their prior training was either brief or took place years ago, and one city director said he’d never received training at all.

We marked the 50th anniversary of Arkansas’ FOIA this year. It isn’t going away, and as media continue to change, the law will adjust accordingly. City directors and other members of local boards must keep the law in mind anytime public business is a topic. We doubt any of these boards wants to go through more of the legal trouble troubles we’ve seen this year. Continue to serve the people by representing them in public, as you were elected to do.

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